Product Comparability
Federal agencies’ contracting officials are responsible for determining
whether an FPI product is comparable to a product available from the
private sector which has been determined to best meet their agencies’
needs.
Determining comparability is a unilateral decision made at the discretion
of the agency’s contracting official. In determining comparability,
the term “comparable” is defined with its common dictionary
meaning, “having sufficient features in common with something
else to afford comparison.” This definition is consistent with
the use of the term throughout the Federal Acquisition Regulation.
Agency's Use of a Prime/Subcontractor
FAR 8.607, Performance as a subcontractor provides
that agencies shall not require a contractor or subcontractor to consider
or use FPI products or services in performance of a contract. However,
while contractors/subcontractors are precluded from having to do so,
the Federal Acquisition regulation (FAR) specifies acquisition actions
for DoD and civilian agencies, which are subject to the two-step comparability
determination process supported by the Department of Defense
Authorization Acts of FY 2002 and FY2003, and for civilian
agencies, Section 637of the Omnibus Appropriations Bill for
FY 2004. To this end, Federal agencies are responsible
for conducting and documenting their comparability determinations, and
for complying with FAR 8.6.
DEPARTMENT of DEFENSE (DoD) BUYING ACTIVITIES
When purchasing a product listed in FPI’s Schedule of Products, DoD buying activities are subject to the provisions of 10 U.S.C. 2410n and its implementing regulations set forth in the Defense Federal Acquisition Regulation Supplement (DFARS), at Parts 208.601-70, 208.602, 208.606, 208.670, 208.671, 219.502-70, 219.508, 252.219-70XX and 252.219-70YY.
`Under these statutory and regulatory provisions, DoD buyers must conduct market research to determine whether an FPI product is comparable to products available from the private sector which best meet the Department’s needs in terms of price, quality and time of delivery. Determining comparability is a unilateral decision made at the discretion of the agency’s contracting official.
If the DoD contracting official determines that the FPI
product is
not comparable:
- competitive procedures are to be used to acquire the product,
- a waiver is not required, and an
- offer must be solicited from FPI during competitive process.
If the DoD determines that the FPI product is comparable:
- FPI’s mandatory source applies, unless
- the DoD buying activity receives a waiver, using the procedures outlined in this section.
CIVILIAN AGENCY BUYING ACTIVITIES
Passage of the Omnibus Appropriations Bill, P.L. 108-199, under Section 637, altered the process by which civilian agencies purchase from FPI during Fiscal Year 2004. The Federal Acquisition Regulation (FAR), which outlines the provisions for purchasing from FPI, has been modified under Part 8, subpart 8.6 to reflect all applicable changes.
Essentially, the same requirements will apply to civilian agencies as are in effect for Department of Defense (DoD) agencies.
- Civilian agencies will be required to conduct market research to determine whether an FPI product is comparable to products available from the private sector which best meet the agency’s needs in terms of price, quality, and time of delivery. Determining comparability is a unilateral decision made at the discretion of the agency’s contracting official.
- If a contracting official determines that FPI’s product is comparable, then mandatory source procedures will remain applicable. In other words, the agency must purchase the item from FPI, unless it receives a waiver to procure from another source.
- If FPI’s product is not found to be comparable by the agency’s contracting official, the purchasing agency shall implement competitive procedures, and UNICOR must be given an opportunity to submit a competitive offer.
